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FITZGERALD v. NRA OF AMERICA

September 23, 1974

Thomas FITZGERALD, a New Jersey Citizen, et al., Plaintiffs,
v.
The NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York corporation, Defendant



The opinion of the court was delivered by: WHIPPLE

 WHIPPLE, Chief Judge.

 Plaintiffs have petitioned this Court for an Order requiring the defendant, National Rifle Association of America, (NRA), to publish certain advertising in The American Rifleman, NRA's official journal. On behalf of Fitzgerald, plaintiffs submitted an advertisement concerning Fitzgerald's candidacy for the NRA's Board of Directors, which defendants refused to publish.

 The 75 member Board consists of, and is elected by, so-called "life members" of the NRA. There are approximately 146,000 members in this category, while "annual members" number more than 800,000. Annual members are not eligible to vote for the Board of Directors, but may make recommendations to a "Nominating Committee" which selects candidates for the election.

 The Nominating Committee is selected by the president of the NRA, who is elected by the members of the Board of Directors. As noted above, this Committee, which is comprised of life members, engages in the process of nominating candidates for the Directors' election. NRA By-laws also provide for a write-in ballot in this election.

 In an effort to gain nomination, plaintiff Fitzgerald first became a life member by paying the necessary fee. He then sought support from the membership by means of an advertisement in The American Rifleman.

 The defendant justifies its refusal to publish the plaintiffs' advertisement by citing an impressive list of precedents upholding the right of a newspaper or magazine to refuse to accept for publication any advertisement submitted to it by a prospective advertiser. *fn1" The discretion afforded publishers to deny space to those seeking to buy it is premised on the characterization of newspapers as private enterprises, rather than as businesses clothed with a public interest.

 Accordingly, a newspaper publisher is generally free to contract and deal with whomever he chooses in the same manner as other businessmen. See J. J. Gordon, Inc. v. Worcester Tel. Publishing Co., 343 Mass. 142, 177 N.E.2d 586 (1961). This Court has no quarrel with this principle and recognizes the general right of a newspaper or magazine to decide what advertisements it will and will not accept. It is the Court's view, however, that this rule is not absolute in all circumstances. Like the vast majority of legal rights and privileges, the right here in question must yield when its exercise would result in the curtailment of another right of even greater social importance.

 The United States Supreme Court has recognized the qualified nature of the publisher's right to refuse advertisements. In Lorain Journal Co. v. United States, 342 U.S. 143, 72 S. Ct. 181, 96 L. Ed. 162 (1951), the Court faced the question of whether a newspaper could refuse advertising when its purpose was the monopolization of interstate commerce. In discussing the issue, the Court noted:

 
The publisher claims a right as a private business concern to select its customers and to refuse to accept advertisements from whomever it pleases. We do not dispute that general right. "But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified." American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S. Ct. 499, 500, 65 L. Ed. 983. The right claimed by the publisher is neither absolute nor exempt from regulation.

 Id. at 155, 72 S. Ct. at 187.

 The Court concluded that when balanced against the Congressional policy of preventing monopoly, the right of publishers to refuse advertisements must yield.

 The publisher's right of refusal was also forced to yield to a countervailing right in Hodgson v. United Mine Workers of America, 344 F. Supp. 17 (D.D.C. 1972). Significantly, the countervailing interest in Hodgson was the right of union members to a fair election under the ...


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